de Vries v. L & L Custom Builders , 310 Neb. 543 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/07/2022 01:06 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543Tabe de Vries, an individual, and Bonnie J.
de Vries, an individual, appellees and
cross-appellants, v. L & L Custom
Builders, Inc., a Nebraska
corporation, appellant
and cross-appellee.
___ N.W.2d ___
Filed December 17, 2021. No. S-20-577.
1. Verdicts: Appeal and Error. When reviewing a jury verdict, the appel-
late court considers the evidence and resolves evidentiary conflicts in
favor of the successful party.
2. Verdicts: Juries: Appeal and Error. A jury verdict may not be set
aside unless clearly wrong, and it is sufficient if there is competent
evidence presented to the jury upon which it could find for the success-
ful party.
3. Verdicts: Juries: Presumptions: Appeal and Error. When the jury
returns a general verdict for one party, an appellate court presumes that
the jury found for the successful party on all issues raised by that party
and presented to the jury.
4. Verdicts: Juries: Presumptions: Words and Phrases: Appeal and
Error. The “general verdict” rule, which is also referred to as the “two
issue” rule, is a policy rule which provides that where a general verdict
is returned for one of the parties, and the mental processes of the jury
are not tested by special interrogatories to indicate which issue was
determinative of the verdict, it will be presumed that all issues were
resolved in favor of the prevailing party, and, where a single determina-
tive issue has been presented to the jury free from error, any error in
presenting another issue will be disregarded.
5. Trial: Appeal and Error. One cannot silently tolerate error, gamble on
a favorable result, and then complain that one guessed wrong.
6. Appeal and Error. An appellate court will not consider an issue on
appeal that was not presented to or passed upon by the trial court.
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 5437. Courts: Judgments: Appeal and Error. A motion for reconsideration,
which is considered nothing more than an invitation to the court to
consider exercising its inherent power to vacate or modify its own judg-
ment, is insufficient for purposes of asking a trial court to pass upon an
issue in order to properly preserve it for appeal.
8. Limitations of Actions: Appeal and Error. The point at which a statute
of limitations begins to run must be determined from the facts of each
case, and the decision of the district court on the issue of the statute of
limitations normally will not be set aside by an appellate court unless
clearly wrong.
9. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling
on a motion for directed verdict, an appellate court must treat the motion
as an admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such being the
case, the party against whom the motion is directed is entitled to have
every controverted fact resolved in its favor and to have the benefit of
every inference which can reasonably be deduced from the evidence.
10. Judgments: Verdicts: Appeal and Error. Review of a ruling on a
motion for judgment notwithstanding the verdict is de novo on the
record.
11. Jury Instructions: Appeal and Error. Whether a jury instruction is
correct is a question of law, which an appellate court independently
decides.
12. ____: ____. Failure to object to jury instructions after they have been
submitted to counsel for review or to offer more specific instructions if
counsel feels the court-tendered instructions are not sufficiently specific
precludes raising an objection on appeal.
13. ____: ____. Jury instructions are subject to the harmless error rule, and
an erroneous jury instruction requires reversal only if the error adversely
affects the substantial rights of the complaining party.
14. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
15. Jury Instructions: Appeal and Error. Where jury instructions are
claimed deficient on appeal and such issue was not raised at trial, an
appellate court reviews for plain error.
16. Judgments: Appeal and Error. An appellate court reviews a denial of
a motion to alter or amend the judgment for an abuse of discretion.
17. Damages: Appeal and Error. On appeal, the fact finder’s determina-
tion of damages is given great deference. The amount of damages to be
awarded is a determination solely for the fact finder, and its action in
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543this respect will not be disturbed on appeal if it is supported by evidence
and bears a reasonable relationship to elements of damages proved.
18. Damages. While the amount of damages presents a question of fact, the
proper measure of damages presents a question of law.
19. Damages: Appeal and Error. An award of damages may be set aside
as excessive or inadequate when, and not unless, it is so excessive or
inadequate as to be the result of passion, prejudice, mistake, or some
other means not apparent in the record.
20. Contracts: Compromise and Settlement: Appeal and Error.
Allocation of a settlement agreement is reviewed for an abuse of
discretion.
21. Limitations of Actions: Breach of Warranty: Contractors and
Subcontractors. Where the basis of the claim is improper workmanship
resulting in defective construction, under either negligence or breach of
the implied warranty to perform in a workmanlike manner, the statute
of limitations of Neb. Rev. Stat. § 25-223 (Reissue 2016) runs from the
date of substantial completion of the project, not the date of any specific
act which resulted in the defect.
22. Equity: Estoppel: Limitations of Actions. Equitable estoppel may be
successfully asserted to avoid the statute of limitations defense when
one lulls his or her adversary into a false sense of security, thereby caus-
ing that person to subject his or her claim to the bar of the statute of
limitations, and then pleads the very delay caused by his or her conduct
as a defense to the action when it is filed.
23. Estoppel: Limitations of Actions. Estoppel does not extend the statute
of limitations but prevents a party from pleading and utilizing the statute
as a bar.
24. Summary Judgment: Appeal and Error. The denial of a motion for
summary judgment is neither appealable nor reviewable.
25. Estoppel. When a plaintiff raises estoppel to avoid or rebut an affirma-
tive defense that has been alleged in a responsive pleading, evidence of
estoppel is generally admissible without being formally pled.
26. Jury Instructions: Statutes. Directly quoting an applicable statute is a
permissible form of jury instruction.
27. Jury Instructions. Where a general charge fairly presents the case to
the jury, it is not error for the trial court, in the absence of a request for
a more specific instruction, to fail to give a more elaborate one.
28. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s failure to give a requested jury instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s failure to
give the requested instruction.
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 54329. Jury Instructions: Appeal and Error. If the instructions given, which
are taken as a whole, correctly state the law, are not misleading, and
adequately cover the issues submissible to a jury, there is no prejudicial
error concerning the instructions and necessitating a reversal.
30. Equity: Estoppel: Pretrial Procedure. Discovery periods and equitable
estoppel involve two different doctrines.
31. Equity: Estoppel: Limitations of Actions. Equitable estoppel is not
based upon the construction of a statute of limitations, but on the com-
mon law.
32. Pleadings: Proof. The party who pleads a setoff bears the burden of
proving it.
33. Verdicts: Remittitur. Where a verdict is excessive, but not so much as
to indicate passion or prejudice on the part of the jury, the error may
be corrected by remittitur, if the excess can be estimated with reason-
able certainty.
34. Remittitur: Appeal and Error. An appellate court should order remit-
titur only when the award is contrary to all reason.
35. Verdicts: Remittitur. If there is no method by which a court can
­rationally ascertain the extent of the excess of a verdict, a remittitur can-
not be required, for the reason that under such circumstances, a remit-
titur is nothing more than a substitution of the judgment of the court for
that of the fact finder.
36. Damages. Amounts expended to investigate the extent of a defect and
determine the proper course of remediation are recoverable damages,
not litigation costs.
37. Damages: Property: Breach of Warranty. The basic goal of the court
for a breach of warranty concerning building construction or injury to
a building or other structure is compensation—that is, to award such an
amount of money as will restore the injured party to the same property
status which he or she occupied immediately prior to the injury.
38. Damages. Because the facts vary from case to case, a rule of damages
which produces compensation in one case may be overcompensation (or
undercompensation) in another case.
39. Damages: Property. If, in fact, the cost of repair or restoration exceeds
the market value of the property just before the injury, then the proper
measure of damages is the market value of the property just before the
damages were incurred, less any salvage.
40. Damages. Public perceptions of a defect when the evidence demon-
strates there is none is an improper basis for recovery.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543Brian T. McKernan, Robert D. Mullin, Jr., and Matthew G.
Munro, of McGrath, North, Mullin & Kratz, P.C., L.L.O., for
appellant.
Gregory C. Scaglione, Quinn R. Eaton, Minja Herian, and
Cody B. Nickel, of Koley Jessen, P.C., L.L.O., for appellees.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Weimer, District Judge.
Per Curiam.
I. INTRODUCTION
The homeowners sued the builder of their house for defects
in the construction of the house and in the preparation of the
lot it was built on, part of which contains and the other part of
which adjoins a riverbank bluff. The jury rendered a general
verdict in favor of the homeowners, after finding in a special
verdict form that the homeowners’ claims were not barred by
the statute of limitations. The builder appeals, raising issues
pertaining to the statute of limitations and the amount of dam-
ages. The homeowners cross-appeal with respect to damages.
We affirm the judgment.
II. BACKGROUND
Tabe de Vries and Bonnie de Vries brought suit on February
15, 2017, against L & L Custom Builders, Inc. (L&L), and
Thompson, Dreessen & Dorner, Inc. (TD2). The parties agreed
the house was substantially completed in November 2012 for
a total price of $847,456.83. The land was purchased for an
additional $70,152.61.
1. Pleadings
In their operative amended complaint, the de Vrieses alleged
they had entered into a contract with L&L to build their
home on an 80-foot-high bluff along a riverbend and that
L&L assured them the selected site was safe to build on.
Before the house was completed, TD2 prepared two reports
of “Geotechnical Exploration” in relation to construction on
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543the site, which indicated bluff failures. The de Vrieses asserted
that L&L withheld a TD2 report and that this report was not
disclosed to them until May 2016.
The de Vrieses alleged that after repairs were made follow-
ing a walk-through inspection, a large crack appeared in the
basement ceiling in July 2014. This began a series of geotech-
nical investigation reports by TD2 that recommended contin-
ued monitoring and study until a final report on May 20, 2016,
suggesting two mechanisms caused the increasing observable
distress at the house.
Also in May 2016, the de Vrieses observed that part of the
riverbluff had fallen into the river. Subsequently, the de Vrieses
discovered that L&L had never installed a “French drain,” as
L&L had represented.
The de Vrieses alleged that in a meeting between the
de Vrieses, L&L, and TD2 on May 24, 2016, L&L and TD2
disagreed as to how to proceed with repairs. L&L pointed out
that TD2’s sixth report could not explain the cause of all the
issues observed with the house. Another meeting between the
de Vrieses and L&L took place on July 28, in which L&L con-
tinued to disagree with TD2’s proposed plan, which led to the
de Vrieses’ decision to sue.
The de Vrieses alleged, based on these facts, several claims
against L&L and TD2, including breach of contract. L&L
alleged the statute of limitations as an affirmative defense.
TD2 alleged as affirmative defenses the statute of limitations
and that any damages suffered by the de Vrieses were caused
by the acts or omissions of third parties over which TD2 had
no control.
2. Motions for Summary Judgment
L&L moved for summary judgment, alleging that there was
no genuine issue that the de Vrieses’ claims against it were
barred by the statute of limitations. TD2 filed a similar motion.
L&L argued at the hearing on the motion that the de Vrieses
had knowledge that a problem existed, albeit not the nature
of the problem or necessarily that they had a cause of action,
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543well before the expiration of the 4-year statute of limitations
and, indeed, within the first 3 years after construction. Thus,
the discovery period did not apply.
With regard to any claim that the statute of limitations was
tolled by fraudulent concealment under a theory of equitable
estoppel, L&L asserted that the de Vrieses could not invoke
the doctrine of equitable estoppel because they did not plead
it. Alternatively, L&L asserted that assurances by L&L, that
they would make the necessary repairs whenever they were
able to discern what precisely the cause of the problem was
and what was needed to fix it, were insufficient to support
equitable estoppel.
After consideration of all the evidence submitted at the hear-
ing on the motions, the court found there was a genuine issue
as to when the de Vrieses reasonably discovered their potential
claims and as to whether there was a “continuing representa-
tion issue.”
The court found it “ironic” that while arguing the de Vrieses
should have known the existence of the problem as early as
July 2014, L&L and TD2, as professionals in their respective
fields, were not themselves able to discover the source of the
problem for some time and continued to represent the observed
distress as minor and completely normal.
3. Settlement With TD2
Shortly before trial was set to begin, the de Vrieses and TD2
filed a joint stipulation to dismiss the de Vrieses’ action as
against TD2 only, with prejudice. Per the stipulation, the court
dismissed the de Vrieses’ complaint as against TD2.
L&L did not object to the dismissal and did not move for
the de Vrieses to produce the settlement agreement at that time.
The de Vrieses moved in limine to prohibit reference to
the jury of their settlement with TD2. L&L agreed with the
de Vrieses that it should not be able to mention to the jury
that there had been a settlement between the de Vrieses and
TD2. However, L&L wished to reserve its rights to ques-
tion witnesses and bring up that TD2 was a party and had
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543generated opinions concerning the case, on the grounds that it
was relevant to whether L&L had proximately caused any of
the damages. The de Vrieses responded that this issue could be
explored without mentioning that TD2 had been a party.
The district court ruled that L&L could discuss with wit-
nesses and experts facts and opinions pertaining to L&L’s fault,
or lack thereof, but not that TD2 was a party and settled. In
ruling on the motion in limine, the court observed that L&L
had not brought a counterclaim against TD2 on any theory of
joint liability.
4. Motion in Limine on “Stigma” Damages
The court sustained L&L’s pretrial motion in limine to
exclude any evidence by the de Vrieses at trial pertaining to its
claim of “stigma” damages against L&L. The court described
the term “stigma damages” as damages due to diminished mar-
ket value of the home even after all repairs are made.
The de Vrieses and the court discussed the de Vrieses’ inten-
tion to present an offer of proof regarding stigma damages. At
trial, outside the presence of the jury, the de Vrieses made an
offer of proof that their expert witness, an appraiser, would
have testified that due to the real estate disclosure statement,
the public aspect of the lawsuit, and the visual inspection of
the bluff by any potential buyer, the fair market value of the
property, even after completion of all corrective work, would
be $213,000 less than it would have been but for the defects, as
the expert elaborated upon in exhibit 277. Exhibit 277 was not
offered or entered into evidence as part of the offer of proof but
is found in the bill of exceptions.
5. Evidence Presented at Trial
Bonnie testified at trial that she and Tabe decided to work
with L&L to build a custom house before deciding on the lot.
When they found the lot at issue, before buying it, she looked
at it with Eric Lakeman, a co-owner of L&L. Adjoining the lot
was a riverbluff, approximately 150 feet away. Bonnie specifi-
cally asked Lakeman whether it would be safe to build there,
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Cite as 310 Neb. 543given that it was a hill alongside a riverbank. Bonnie testi-
fied that Lakeman assured her it would be safe to build there
and “the bank wasn’t a problem.” In fact, he told Bonnie he
had lived in the area his whole life, and Bonnie said she was
assured by Lakeman the bank had not moved. The de Vrieses
purchased the lot directly from the owner, along with a sepa-
rate lot consisting of a 10-foot strip that encompasses the river­
bluff. They entered into a contract with L&L to build a house
on the lot.
The contract price did not include “landscaping” services.
L&L subcontracted with DMS Landscaping (DMS) to con-
struct four retaining walls, but, according to Lakeman, most of
the work conducted by DMS was landscaping done through a
contract directly with the de Vrieses. Lakeman described this
as including the “rough and final grading” of the lot.
Lakeman testified that as a result of the retaining walls,
a French drain was required, and that he understood DMS
was going to install one. Sometime in 2015 or 2016, how-
ever, DMS discovered the French drain had not actually been
installed. The owner of DMS testified that all the work DMS
did on the de Vrieses’ property was supervised and approved
by L&L and that L&L was at all times acting as the general
contractor. He testified DMS was not responsible for any of
the drainage plan or installation of drainage “inside the enve-
lope of the house.”
(a) Preconstruction TD2 Reports From
March 2011 and March 2012
TD2 had prepared a geotechnical investigation report on the
lot on March 31, 2011, for a different prospective builder in
relation to a different prospective client with an expected build
of a single-story house with a walkout basement. The lot sub-
ject to the report did not contain the 10-foot strip alongside the
river, which the de Vrieses acquired as part of their purchase of
the land. L&L obtained from TD2 a copy of its report before
commencing construction.
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543TD2 stated in the report that the encountered natural soils
were “expected to be suitable for direct support of the struc-
ture utilizing shallow spread foundations without the need for
improvement of the existing soils.” However, TD2 observed
“clayey till [that] is known to be swell susceptible” and “rec-
ommended that these soils be maintained in a moisture content
state at or above optimum moisture before concrete is placed.”
The 10-page report contained numerous other specifications for
proper site preparation for a house on the lot.
TD2 described the bluff along the river near the lot appeared
to be “experiencing failure by blocks toppling from the upper
zones of the bluff coupled with the debris being eroded and
the bluff being undercut by the River.” At the time of the
report, the lot lines examined were 110 to 200 feet from the
bluff. Thus, TD2 did not expect a house built on the lot to “be
troubled by slope movements in the near future.” But, “over
time as the bluff continues to experience failures, the bluff may
work towards the lot.”
L&L asked TD2 to again inspect the site following excava-
tion and before foundation construction. That inspection led to
another report. In this report, dated March 13, 2012, TD2 did
not recommend changes from its prior report regarding design
and construction of foundation elements. However, it presented
an alternative subgrade specification of crushed limestone in
lieu of compacted soils.
There was evidence that L&L emailed a copy of the March
2011 report to Tabe in September 2011, but Bonnie testified
that neither she nor Tabe recalled receiving the report. The first
time she was made aware of it was in May 2016.
(b) Initial Drywall Cracking in 2014
After construction of the house and the de Vrieses had
moved in, some drywall cracking appeared. The 1-year walk-
through for the express warranty was conducted by agree-
ment of all parties approximately 17 months after construc-
tion was completed. According to Bonnie, Lakeman told her
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543and Tabe not to worry about the drywall cracks, as they were
“settlement” and “cosmetic.”
L&L repaired the cracks in June 2014. Lakeman testified
that the cracking observed at that time was “[k]ind of stan-
dard stuff.”
The following month, the de Vrieses noticed a new crack in
a downstairs room, and notified L&L. L&L contacted TD2 to
look at it.
Lakeman testified that the new crack, which he observed
in August 2014, “was a concern of mine” both because it was
outside the normal settlement period and because it was an
aggressive, c-shaped, jagged crack that was not in a standard
location. Lakeman also observed cracking in the tile floor.
Bonnie testified, however, that Lakeman assured her and Tabe
that the problems were due to normal settlement, saying,
“‘[d]on’t worry about it’” and “‘[w]e’ll figure it out and take
care of it.’” L&L did not object to this testimony.
(c) TD2 Report Dated September 16, 2014
At L&L’s request, TD2 conducted a site visit and inspection
on August 26, 2014, and prepared a report dated September
16, 2014. The de Vrieses were not billed for these services. In
the September 2014 report, TD2 noted apparent settlement on
the west exterior wall of the house and the rear patio on the
north side. TD2 set forth in the report that it was “important
to note that it appears to be a settlement rather than a heave
or swell in the soil because of the soil material types encoun-
tered at the site.” TD2 also stated, “In general terms, the inte-
rior distress observed was minor based on my observations
and experience.”
The report noted that the upper portion of the soil profile
around most of the house was “very moist” and that TD2 sus-
pected “this soil material has gained in moisture content from
what it was at the time of construction.” It did not perceive
this as causing the observed distress but suggested that “some
efforts be made to promote a decrease in the exterior soil
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Cite as 310 Neb. 543moisture, which I would expect to be related to slowing down
or reducing future cracking and distress.”
TD2 recommended monthly monitoring of some of the more
prominent cracks over a period of 6 months “to better gauge
how movements may be occurring.” TD2 elaborated that the
goal of the monitoring program is to define the rate and mag-
nitude of any continuing movements to justify the level and
timing of any repairs that can or should be made. TD2 sum-
marized that “the distress observed at our inspection visit is
considered minor at this time” and “interpreted to be due to
settlement and not heave.”
Bonnie testified that she was provided a copy of the report
and understood at that time that the observed cracking was part
of the normal settlement process.
(d) 2014 Additional Work by DMS
Bonnie testified that Lakeman and the owner of DMS con-
ferred at the house as to how to best address the observed exte-
rior moisture in the soil near the house. After that discussion,
DMS removed mulch, resloped some of the landscaping, and
added a downspout. DMS’ work was completed in October or
November 2014.
(e) 2015 Monitoring
Lakeman testified that in accordance with TD2’s recom-
mendations, in 2014 and 2015, he made trips to the de Vrieses’
house to monitor any movement. He observed that cracks were
increasing in size and that more cracks were developing around
the house. Bonnie testified that they waited and monitored for
about a year after the 2014 report.
(f) Engineering Report Dated June 2, 2015
At L&L’s direction, the house was inspected by Donan
Engineering Co., Inc (Donan). L&L’s relationship with Donan
was not fully explained. The de Vrieses were apparently not
charged for this inspection. Lakeman assisted in the inspec-
tion by pointing out areas of concern. The Donan report,
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543completed on June 2, 2015, noted cracking in the basement
floor and in the drywall on the walls that was continuing and
progressing. Donan concluded that the cause of the cracks in
the drywall on the walls and ceilings and displacement of con-
crete floors and slabs was “settlement due to ‘hillside creep.’”
Donan described that the house was constructed on a steep
embankment and that “[s]oils on steep slopes are prone to a
phenomenon known as hillside creep, where the soils slowly
move down the hill.” The Donan report set forth that settlement
would continue until the soil achieves equilibrium and that
stability of the foundation could be achieved by “supporting
the foundation of the house on soils below the soils subject to
hillside creep with hydraulic piers and tiebacks.”
(g) TD2 Report Dated August 18, 2015
L&L requested that TD2 make another site visit, which
occurred on August 5, 2015, and that it prepare an updated
report, which was issued on August 18. TD2 reviewed the
Donan report and found its conclusions regarding hillside
creep as the mechanism causing the distress in the house “dif-
ficult to justify.” TD2 expressed the opinion that the “pres-
ent observable distress . . . is less than moderate severity.”
TD2 recommended “an additional level of study be used to
determine what and how structural and non-structural ele-
ments of the house may or may not be moving.” This required
repeated surveys over time, “because a single measuring occa-
sion does not provide adequate information for a conclusion”
and because monitoring will “provide an indication of slab or
structural wall movement which better identifies the results of
the cause of the distress.”
(h) September 2015 Meeting
Bonnie was provided with a copy of the Donan report in
August 2015, but testified, without objection, that L&L always
told her it would find the cause and take care of it. Bonnie
was aware that L&L and TD2 did not agree with the Donan
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543report. Bonnie testified she was not concerned, because L&L
and TD2 were working with her and Tabe to sort things out.
The de Vrieses, L&L, and TD2 met in September 2015 to
discuss the matter, at which point L&L and TD2 proposed they
conduct a more extensive investigation that would entail bor-
ings and a couple of surveys at different future dates to track
movement. Bonnie testified that they agreed and that the sur-
veys continued through April 2016.
Bonnie testified that she and Tabe understood the cause
of the cracks could still be settlement and explained that she
thought, “[O]kay, they are still trying to sort it out.” According
to Bonnie, nobody said, “‘We’re really worried about this.’”
When Bonnie expressed concern to L&L about the progress-
ing cracks, according to her testimony: “[I]t was usually,
‘Look, we’re trying to find the cause. We’ll take care of it. But
you have to find the cause to take care of it.’ And so we did
what they asked.” Bonnie testified they were under the impres-
sion that L&L was going to discover what was happening and
fix it.
(i) TD2 Report Dated November 19, 2015
TD2 took borings as discussed at the September 2015 meet-
ing and as part of its testing and monitoring plan set forth in its
August 18, 2015, report. In the first of two followup reports,
dated November 19, 2015, TD2 concluded, based on soil sam-
ples from the borings, that the soil was not “swell susceptible”;
therefore, “basement slab heave would be an unlikely cause for
the distress.”
According to TD2, it was “still early to speculate,” but with
the assumption that the slab was poured perfectly flat and
level, “an interpretation would be consistent with perimeter
settlement and not center heave.” This “may also help explain
why cracking in the drywall is not prevalent in the center of
the house in ceilings and floors.” The report suggested another
“exterior monitoring” in 60 days and another interior floor
level­ness survey “at least 120 days out.”
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543(j) Invoices Forwarded to the
de Vrieses on March 1, 2016
On March 1, 2016, TD2 forwarded its invoice for profes-
sional services from July 6 through October 4, 2015, consisting
of a geotechnical consultation for a site visit and an interior
soil sampling of the borings. It also forwarded its invoice for
professional services from October 5, 2015, through May 29,
2016, consisting of a geotechnical consultation, an exterior sur-
vey, and an interior survey. The cover letter stated, “Enclosed
is an invoice that was originally issued to [L&L] in October
2015. I found out today from [Lakeman] with [L&L] that the
invoice should have been issued to you.”
(k) TD2 Report Dated May 20, 2016
TD2 submitted its final report on May 20, 2016, follow-
ing two additional rounds of monitoring at the exterior of the
structure and one more round of monitoring in the basement
floor level at the site. In the report, TD2 reiterated its conclu-
sion that the soil was not “swell susceptible” and that therefore,
the “basement slab heave would be an unlikely cause for the
distress.” The report provided further that, over the prior 6
months, “the total movements . . . generally do not show large
or continuing movements”—although TD2 noted two points at
the west end of the building on the concrete wall showing a
differential of about an inch.
TD2 opined that “at least two different mechanisms are act-
ing to cause the observable distress at the house.” The first
mechanism listed by TD2 in its report, exhibited at the rear
patio, was “either the self-compression of the fill materials
placed or the hydrocompaction of the supporting soils.” The
other distress to the house was caused by “a perimeter settle-
ment of the foundations in the eastern portion of the house . . .
due to infiltration of water to the bearing level causing soften-
ing and compression of the bearing soils.”
TD2 articulated the caveat that its opinions were “what the
data suggest at this time” and “[t]hat is not to say that my
interpretation is the only possible explanation or that other
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543mechanisms may be acting alone or in conjunction as well.” It
stated additional monitoring once or twice a year “can be used
to maintain a record of exterior and or relative interior move-
ments over time if desired” to provide “assurance that continu-
ing movements are or are not present.”
(l) 2016 Meetings and Other Discoveries
Bonnie testified that in all her discussions with Lakeman
about the investigation of the cracking up through the summer
of 2016, following TD2’s final report on May 20, Lakeman had
expressed that the problems were cosmetic, that L&L would
continue to monitor the situation, and that “‘we’ll fix it, take
care of it when we’re finished.’” But, after TD2’s May 2016
final report, “we said, well, wait a minute. Suddenly we have
all these costly repairs when things have been minor, ‘don’t
worry about it, we’ll repair it.’”
L&L and TD2 met with the de Vrieses on May 20, 2016,
and in July 2016. At the meetings, L&L and TD2 could not
agree as to what should be done. At that point, the de Vrieses
“proceeded to try and get more opinions, since . . . it was an
extensive repair.” Bonnie testified that it finally became appar-
ent in May 2016, after TD2’s final results were presented, that
“there were major issues that were not going to be addressed or
couldn’t be addressed by the current people who were dealing
with it.”
According to Bonnie, it was not until the May 2016 meeting
that the de Vrieses discovered TD2 had conducted an inspec-
tion of the lot in March 2011 for a different prospective builder
and a different prospective client. Likewise, they did not
receive a 2012 report by TD2 until May 2016. Bonnie testified
it was also in May 2016 that she first noticed issues with the
bluff. Chunks of it had fallen off, and such failure was getting
closer to the lot line.
(m) The de Vrieses’ Investigations
On December 27, 2017, the de Vrieses entered into a con-
tract with Terracon Consultants, Inc. (Terracon), to conduct a
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543forensic investigation concerning the house to determine poten-
tial causes of distress and remedial measures. The de Vrieses
also hired King Kuebler Little, a structural engineer, to inspect
the house and lot and recommend remedial measures. In April
2019, Little and Stephen Nickel, a civil, geotechnical engi-
neer, worked together on a report setting forth the cause of the
defects and recommendations for repairs.
Little and Nickel found a layer of crushed limestone con-
taining free water beneath the soil fill, indicating the limestone
had been used to provide a base for the backfill required by
an overexcavation of the basement subgrade, which had not
previously been revealed. The crushed limestone was a perme-
able zone that carried water to the glacial till, which swelled
and brought on the heave seen in the basement floor slab. The
report also found that it should have been clear the lot had a
significant amount of overland surface water runoff requiring
extra protective measures, including a deep interceptor drain,
or French drain, along the east side, which drain was even-
tually installed in June 2017. The extra protective measures
should have also included an interior, underfloor draintile.
(n) Expert Testimony
Nickel was later retained by the de Vrieses as an expert
witness. At trial, Nickel testified that while TD2’s precon-
struction reports contained good recommendations, they were
not implemented by L&L. Nickel testified that L&L failed to
install a subgrade in a good and workmanlike manner and that
such failure made the lot unbuildable and caused damage to
the house through movement in excess of the acceptable move-
ment tolerances. That damage, Nickel explained, was likely to
continue if not remedied.
Nickel described in detail the improper preparation of the
subgrade for the foundation for the slab. This included find-
ing limestone at the bottom rather than at the top of the fill
soil directly beneath the floor slab. Limestone at the location
where it was found acted to carry water to the glacial till soil,
which is known to be able to swell in the proper conditions.
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543Further, the soil had not been moisture conditioned and the
site had been dug to an unusually extensive depth.
Nickel testified that L&L failed to act in a workmanlike
manner by failing, in the ways described, to properly prepare
the subgrade, to install interior draintile along the foundation
walls and laterally under the concrete slab, to specify a French
draintile on the east side of the property as part of the drainage
for the house, and to provide specification for the bluff.
Nickel explained that the bluff had moved into the lot and
that without more permanent remedial measures beyond the
emergency measures already undertaken by the de Vrieses,
it would eventually detrimentally affect the house. Nickel
explained that contractors had installed drainage systems as
part of the necessary work Nickel recommended for emergency
fixes for the failed bluff. As well, Nickel had recommended
hydroseeding the bank and maintaining a tarp over it, which
the de Vrieses undertook. These measures had significantly
slowed down the toppling from the bluff, but failures were
still occurring.
Nickel testified he had explored various permanent remedial
measures and even the least expensive measure, per a contrac-
tor’s bid, would cost $389,939, which Nickel considered fair
and reasonable. Nickel testified without objection that the
most expensive permanent remedial solution was $800,000
to $1 million. Because of cost, Nickel recommended the
de Vrieses pursue the least expensive solution of $389,939.
Little was also eventually employed by the de Vrieses as
an expert witness and testified at trial. Little explained it was
customary for an engineer, in preparing specifications for a
structure on a site, to consider both the lot and the surrounding
areas, including slopes and bluffs near the site. Little agreed
with Nickel that the “overwhelmingly significant mechanism”
of the damage was heave and that L&L had failed to prepare
the subgrade in a workmanlike manner. He opined that the
manner in which L&L prepared the subgrade failed to make
the lot buildable for a house. The resultant movement of the
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543house was outside of acceptable movement tolerances, and the
resultant damage would likely continue if not remedied.
(o) Diagnosis and Repair Expenses
Through both testimony and exhibits, the de Vrieses set
forth evidence of the diagnosis and repair expenses relating to
the defects of the house and the lot.
Bonnie testified that the de Vrieses incurred approximately
$15,000 for Terracon’s services. They also incurred approxi-
mately $6,700 to repair the geothermal that was damaged while
extracting borings for the study. Bonnie also described approxi-
mately $10,000 in work conducted relating to the riverbank
and another approximately $3,200 for borings. The de Vrieses
also paid approximately $26,000 in repairs to the French drain
and for the creation of a new drainage system and berm to sta-
bilize the bank to some extent.
Exhibits entered into evidence without objection reflected
approximately $397,000 as the total amount of both the esti-
mates for repairs not yet carried out and invoices for work
already done. As reflected in all exhibits, whether or not
objected to, which were entered into evidence, but not includ-
ing testimony, the total cost was approximately $420,000.
6. Motions for Directed Verdict
At the close of the de Vrieses’ case, L&L moved for a
directed verdict on the grounds of the statute of limitations,
arguing that the visible cracks put the de Vrieses on notice of a
defect at the latest by May 2015. Thus, they were not entitled
to the statutory discovery period. L&L also stated with regard
to its discovery argument, “[T]here’s no pleading that says
. . . there’s a basis to toll that, which is required procedur-
ally.” L&L did not make any arguments specific to the issue
of equitable estoppel. L&L also moved for a directed verdict
on the de Vrieses’ claim for damages related to the bluff, argu-
ing that the allegations as to L&L’s representations that the
lot was buildable failed to present a recoverable basis under
the contract and that there was insufficient evidence relating
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543to causation for that claim. The court overruled the motions
for directed verdict, finding that the issues of the statute of
limitations and the liability in relation to the bluff failure pre-
sented factual questions for the jury to decide. L&L renewed
its motions for directed verdict at the close of all the evidence,
which the court again overruled.
7. Jury Instructions
The matter was submitted to the jury. In instruction No. 2, it
was stated that the de Vrieses paid L&L a total of $847,420.71
under the terms of the contract, the house was completed by
March 2012, and the de Vrieses first observed some cracking
in the house in May 2014.
Instruction No. 5 involved L&L’s affirmative defense of the
statute of limitations. It stated in full:
Defendant affirmatively alleges that Plaintiffs’ claims
are barred because they were not timely filed within the
applicable statute of limitations period. Before Defendant
may prevail on this defense against Plaintiffs, Defendant
must prove, by the greater weight of evidence that
Plaintiffs’ claims are barred by the Statute of Limitations,
which provides as follows:
Any action to recover damages based on any alleged
breach of warranty on improvements to real property or
based on any alleged deficiency in the design, planning,
supervision, or observation of construction, or construc-
tion of an improvement to real property shall be com-
menced within four years after any alleged act or omis-
sion constituting such breach of warranty or deficiency.
If such cause of action is not discovered and could not
be reasonably discovered within such four-year period,
or within one year preceding the expiration of such four-
year period, then the cause of action may be commenced
within two years from the date of such discovery or from
the date of discovery of facts which would reasonably
lead to such discovery, whichever is earlier. In no event
may any action be commenced to recover damages for
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Cite as 310 Neb. 543an alleged breach of warranty on improvements to real
property or deficiency in the design, planning, supervi-
sion, or observation of construction, or construction of an
improvement to real property more than ten years beyond
the time of the act giving rise to the cause of action.
Defects are discovered when a person of ordinary intel-
ligence and prudence learns that defects exist[]. A person
does not have to discover the exact nature or source of the
defect, but only that a defect exists.
However, if you find that Defendant fraudulently, ineq-
uitably and/or lulled Plaintiffs into inaction, then you
must disregard Defendant’s defense of the statute of
limitations.
Plaintiffs filed their action on February 15, 2017.
EFFECT OF FINDINGS
If Defendant has not met its burden of proof on this
issue then your verdict must be for Plaintiffs and you
must indicate your decision on Verdict Form 2.
If on the other hand, you find that Defendant has met
its burden of proof on this issue, then your Verdict must
be for Defendant and you must indicate your decision on
Verdict Form 2.
Instruction No. 4 stated that damages should be figured as
follows: “If you find that the defects can be remedied without
materially injuring or reconstructing a substantial portion of the
property, then Plaintiffs are entitled to recover the reasonable
cost of remedying the defects.”
At the jury instruction conference, L&L had made the fol-
lowing objection to instruction No. 5: “The defendant objects
and believes a date should be utilized.” It did not raise any
other omission. L&L then stated, “We also believe that the
discovery period was not alleged in the amended complaint.”
L&L did not object to the specific language of instruction
No. 5, stating that “[I]f you find the [D]efendant fraudulently,
inequitably, and/or lulled Plaintiffs into inaction, then you must
disregard Defendant’s defense of the statute of limitations.”
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Cite as 310 Neb. 543L&L did not object that estoppel had not been pled. There
is no evidence contained in the record on appeal that L&L
proposed any alternative jury instruction or that L&L requested
special verdict forms to separate out the different defenses to
the statute of limitations or to separate out what aspects of the
de Vrieses’ claims, which encompassed the house, the lot prep-
aration, and the bluff, it found L&L liable for. L&L’s stated
objections to instruction No. 5 were overruled.
8. Jury Verdict
In verdict form No. 2, the jury found in favor of the
de Vrieses on L&L’s affirmative defense of the statute of limi-
tations. On verdict form No. 1, the jury found in favor of the
de Vrieses in their claims against L&L for breach of contract
or breach of express warranties. In that form, the jury set
forth damages in the amount of $418,175. The jury was not
asked, through special verdict forms or otherwise, to separate
liability relating to preparing the building site for the house to
experience movement within standard tolerances from liability
relating to the bluff failure. Likewise, the jury was not asked
to separate the issue of the discovery period from the issue
of equitable estoppel in determining whether the de Vrieses’
action was barred by the statute of limitations.
9. Posttrial Motions
L&L filed a motion for judgment notwithstanding the ver-
dict, pursuant to Neb. Rev. Stat. § 25-1315.02 (Reissue 2016),
to alter or amend the judgment under Neb. Rev. Stat. § 25-1329(Reissue 2016), and for new trial, pursuant to Neb. Rev.
Stat. § 25-1142 (Reissue 2016). As pertinent to this appeal,
the motion asserted the statute of limitations prohibited the
de Vrieses’ recovery and, in the alternative, the judgment
should be set off by the amount of the de Vrieses’ pretrial
settlement with TD2 and should be further limited to the cost
of repairs in the amount of $289,845. The motion did not
specifically ask for a new trial on the basis of excessive dam-
ages or because of prejudicial jury instructions, and it did not
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Cite as 310 Neb. 543specifically assert that the issue of estoppel should not have
been submitted to the jury because it was not pleaded.
(a) Statute of Limitations
At the hearing on the motion, L&L asserted, first, that
the undisputed facts established the statute of limitations set
forth in Neb. Rev. Stat. § 25-223 (Reissue 2016) prohibited
the de Vrieses’ recovery. Specifically, L&L argued that the
June 2015 Donan report put the de Vrieses on notice of their
claim 5 months before the 3-year discovery period, such that
the de Vrieses were not entitled to the statutory 2-year tolling
period.
L&L also reiterated its objection regarding instruction No. 5
and the absence therein of “a date . . . as to when that discov-
ery should have taken place by.”
Finally, for the first time since its motion for summary judg-
ment, L&L specifically raised at the hearing the fact that estop-
pel was not pled in the de Vrieses’ complaint. L&L argued the
jury thus should not have been instructed on that theory. The
de Vrieses responded that the issue had been tried by implicit
consent, when L&L failed to object to testimony on that issue,
and that the de Vrieses had offered to amend their complaint
around the time of the jury instruction conference.
The court denied this aspect of the motion, reiterating its
reasoning set forth in its order denying L&L’s motion for sum-
mary judgment and summarizing it was for the jury to decide
when the de Vrieses reasonably should have discovered L&L’s
breach. The court noted that the jury heard evidence of the
Donan report and were presumed to have taken it into consid-
eration. In its written order, the court stated as to the equitable
estoppel defense, “this was not formally pled by Plaintiffs and
therefore the jury was never instructed on equitable estoppel
and the Court will not further address this issue.”
(b) Settlement Setoff
Second, L&L asked at the hearing that the jury verdict
and judgment be reduced and amended so as to set off the
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Cite as 310 Neb. 543amount of the de Vrieses’ pretrial settlement with TD2. L&L
asserted that there was a single injury to the house and that the
de Vrieses received compensation in the settlement with TD2
for that single injury. L&L did not introduce the settlement
agreement into evidence or move to compel its production.
The court denied the request for setoff. The court noted that
it did not know the amount of the settlement. Further, there
was no evidence as to what claims the settlement encompassed.
The de Vrieses had sought to recover against TD2 not only
damages as to the residence, but also for the bluff. And they
sought against TD2 the recovery of stigma damages related to
the house, which the de Vrieses were not permitted to recover
against L&L. Thus, concluded the court, “it would not be pos-
sible to determine what amount of the settlement proceeds
from TD2 related to what alleged damage.”
(c) Unrecoverable Costs
In the alternative to its motions based on the statute of limi-
tations and in addition to its alternative motion for setoff, L&L
asked that the jury verdict and judgment be limited to the cost
of repairs in an amount no more than $289,845. In making this
argument, L&L relied on exhibit 271, offered into evidence
by the de Vrieses and entered into evidence without objec-
tion. Exhibit 271 contained a bid by Carlson Projects, Inc., for
the repair of various aspects of the house. The total estimate
to complete that work was $289,845. One of the owners of
Carlson Projects testified at trial that he did not determine what
repairs were necessary, but relied on the recommendations
made by Little.
L&L claimed that any other evidence of costs were unre-
coverable litigation costs or were costs related to the drainage
of the bluff. It believed, given the amount of damages, that
the jury had implicitly found it was not liable for the bluff or
drainage issues of the lot. Therefore, argued L&L, the amount
of the damages the jury awarded was excessive.
The court rejected L&L’s premise that the only evidence
at trial relating to the costs of repair was the Carlson Projects
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Cite as 310 Neb. 543estimate in the amount of $289,845. The court stated there
was also evidence of repairs made by the de Vrieses separate
from the Carlson Projects estimate, including installation of
the drainage system and water diversion project, along with the
engineering costs associated therewith.
10. Motion to Reconsider and to
Produce Settlement Agreement
After the court denied L&L’s multifaceted postjudgment
motion, L&L filed a motion to reconsider, require production,
and supplement the record on its posttrial motions. L&L asked
the court for an order requiring the de Vrieses to “immediately
produce the Confidential Settlement Agreement to the Court
and counsel for L&L.” After the de Vrieses produced the
settlement agreement, L&L asked that the court supplement the
record and admit the settlement into evidence as exhibit 472
under seal. L&L requested that the court then review the settle-
ment agreement and reconsider its order denying L&L’s prior
motion to reduce and amend the jury verdict in light thereof.
The court denied the motion to produce and reconsider. It
noted that L&L did not object to the dismissal of TD2 due to
its settlement with the de Vrieses and that at no point before
L&L’s latest motion had it pursued production of the settlement
agreement. The court stated that L&L had the opportunity at
the hearings on its prior motions to make a record and request
production of the settlement agreement, but L&L failed to do
so. In any case, reasoned the court, production of the settle-
ment agreement would not resolve the issues already noted in
the court’s order denying L&L’s motion to reduce and amend
the jury verdict.
III. ASSIGNMENTS OF ERROR
L&L assigns that the district court erred in (1) entering judg-
ment against it in the amount of $418,175, (2) determining the
de Vrieses were not barred from recovery as a result of the
statute of limitations set forth in § 25-223, (3) denying L&L’s
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Cite as 310 Neb. 543posttrial motions, (4) refusing to set off the judgment by the
amount of the settlement agreement between the de Vrieses
and TD2, (5) denying L&L’s motion to reconsider and refusing
to require the de Vrieses to accept into evidence the settlement
agreement between the de Vrieses and TD2, (6) determin-
ing that the judgment amount was not excessive and did not
include nonrecoverable costs, and (7) giving its instructions to
the jury on L&L’s statute of limitations defense.
On cross-appeal, the de Vrieses assign that the district court
erred in (1) excluding the de Vrieses’ expert witness testimony,
exhibit evidence, and argument, which would have supported
causation and damages relating to the stigma remaining on
the de Vrieses’ property after repairs are completed, and (2)
preventing the de Vrieses from submitting the issue of stigma
damages to the jury.
IV. STANDARD OF REVIEW
[1] When reviewing a jury verdict, the appellate court con-
siders the evidence and resolves evidentiary conflicts in favor
of the successful party. 1
[2] A jury verdict may not be set aside unless clearly wrong,
and it is sufficient if there is competent evidence presented to
the jury upon which it could find for the successful party. 2
[3] When the jury returns a general verdict for one party,
we presume that the jury found for the successful party on all
issues raised by that party and presented to the jury. 3
[4] The “general verdict” rule, which is also referred to
as the “two issue” rule, is a policy rule which provides that
where a general verdict is returned for one of the parties,
and the mental processes of the jury are not tested by special
1
Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435(2018).
2
ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896
N.W.2d 156 (2017)
3
Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (2015).
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Cite as 310 Neb. 543interrogatories to indicate which issue was determinative of
the verdict, it will be presumed that all issues were resolved in
favor of the prevailing party, and, where a single determinative
issue has been presented to the jury free from error, any error
in presenting another issue will be disregarded. 4
[5] One cannot silently tolerate error, gamble on a favorable
result, and then complain that one guessed wrong. 5
[6] An appellate court will not consider an issue on appeal
that was not presented to or passed upon by the trial court. 6
[7] A motion for reconsideration, which is considered noth-
ing more than an invitation to the court to consider exercising
its inherent power to vacate or modify its own judgment, is
insufficient for purposes of asking a trial court to pass upon an
issue in order to properly preserve it for appeal. 7
[8] The point at which a statute of limitations begins to run
must be determined from the facts of each case, and the deci-
sion of the district court on the issue of the statute of limita-
tions normally will not be set aside by an appellate court unless
clearly wrong. 8
[9] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence. 9
4
Kuhnel v. BNSF Railway Co., 20 Neb. App. 884, 834 N.W.2d 803 (2013),
reversed on other grounds, 287 Neb. 541, 844 N.W.2d 251 (2014); Lahm
v. Burlington Northern RR. Co., 6 Neb. App. 182, 571 N.W.2d 126 (1997).
5
Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d 455 (2001).
6
Id.7
See id.8
Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002).
9
Jacobs Engr. Group v. ConAgra Foods, supra note 1.
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Cite as 310 Neb. 543[10] Review of a ruling on a motion for judgment notwith-
standing the verdict is de novo on the record. 10
[11] Whether a jury instruction is correct is a question of
law, which an appellate court independently decides. 11
[12] Failure to object to jury instructions after they have
been submitted to counsel for review or to offer more specific
instructions if counsel feels the court-tendered instructions
are not sufficiently specific precludes raising an objection
on appeal. 12
[13] Jury instructions are subject to the harmless error rule,
and an erroneous jury instruction requires reversal only if the
error adversely affects the substantial rights of the complain-
ing party. 13
[14] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. 14
[15] Where jury instructions are claimed deficient on appeal
and such issue was not raised at trial, an appellate court
reviews for plain error. 15
[16] An appellate court reviews a denial of a motion to alter
or amend the judgment for an abuse of discretion. 16
[17] On appeal, the fact finder’s determination of damages is
given great deference. 17 The amount of damages to be awarded
is a determination solely for the fact finder, and its action in
10
Valley Boys v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856(2020).
11
City of Wahoo v. NIFCO Mech. Systems, 306 Neb. 203, 944 N.W.2d 757(2020).
12
See Wilkins v. Bergstrom, 17 Neb. App. 615, 767 N.W.2d 136 (2009); Neb.
Ct. R. § 6-802.
13
Haffke v. Signal 88, 306 Neb. 625, 947 N.W.2d 103 (2020).
14
Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).
15
Foundation One Bank v. Svoboda, 303 Neb. 624, 931 N.W.2d 431 (2019).
16
Jacobs Engr. Group v. ConAgra Foods, supra note 1.
17
Shipler v. General Motors Corp., supra note 14.
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Cite as 310 Neb. 543this respect will not be disturbed on appeal if it is supported
by evidence and bears a reasonable relationship to elements of
damages proved. 18
[18] While the amount of damages presents a question of fact,
the proper measure of damages presents a question of law. 19
[19] An award of damages may be set aside as excessive or
inadequate when, and not unless, it is so excessive or inade-
quate as to be the result of passion, prejudice, mistake, or some
other means not apparent in the record. 20
[20] Allocation of a settlement agreement is reviewed for an
abuse of discretion. 21
V. ANALYSIS
In its appeal, L&L asserts that the de Vrieses’ action was
barred by the statute of limitations as a matter of law and the
district court erred in finding otherwise. In the event we uphold
the jury’s determination that the de Vrieses’ claims were not
barred as a matter of law by the statute of limitations, L&L
contends we should find that the court erred in its jury instruc-
tion on the statute of limitations. In the event we disagree with
L&L’s assertion that a new trial was warranted because the jury
instruction on the statute of limitations was prejudicial, L&L
asks that we find merit to its arguments that the court erred in
refusing to reduce the amount of the damages awarded by the
jury. The de Vrieses’ cross-appeal challenges the court’s exclu-
sion of evidence pertaining to stigma damages.
1. Statute of Limitations
We first consider L&L’s arguments pertaining to the statute
of limitations. In a verdict form on the statute of limitations,
18
U.S. Pipeline v. Northern Natural Gas Co., 303 Neb. 444, 930 N.W.2d 460(2019).
19
Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012).
20
Roth v. Wiese, 271 Neb. 750, 716 N.W.2d 419 (2006).
21
Strasburg v. Union Pacific RR. Co., 286 Neb. 743, 839 N.W.2d 273(2013).
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Cite as 310 Neb. 543the jury rendered a verdict in favor of the de Vrieses, after
being instructed on both tolling and estoppel. We cannot
explain the district court’s statement in its order denying the
posttrial motions that the jury was not instructed on estoppel.
The record shows otherwise, and L&L’s arguments on appeal
acknowledge this fact. Instruction No. 5 instructed the jury on
estoppel by stating, after a description of the discovery period:
“However, if you find that Defendant fraudulently, inequitably
and/or lulled Plaintiffs into inaction, then you must disregard
Defendant’s defense of the statute of limitations.”
L&L contends reasonable minds could only have drawn
the conclusion that the de Vrieses should have discovered
their cause of action such that they were not protected by the
discovery period of the statute. L&L does not similarly argue
reasonable minds could not differ as to whether L&L was
estopped from asserting § 25-223(1) as a defense; instead, L&L
asserts the question of estoppel should have been disposed of
as a matter of law because the de Vrieses failed to plead it.
Alternatively to these arguments that it was entitled to judg-
ment as a matter of law, L&L asserts that it was prejudiced by
the jury instruction on the statute of limitations and that the
court should have granted its motion for a new trial.
The parties agree that the de Vrieses’ action was governed
by the statute of limitations in § 25-223:
Any action to recover damages based on any alleged
breach of warranty on improvements to real property or
based on any alleged deficiency in the design, planning,
supervision, or observation of construction, or construc-
tion of an improvement to real property shall be com-
menced within four years after any alleged act or omis-
sion constituting such breach of warranty or deficiency.
If such cause of action is not discovered and could not
be reasonably discovered within such four-year period,
or within one year preceding the expiration of such four-
year period, then the cause of action may be commenced
within two years from the date of such discovery or
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Cite as 310 Neb. 543from the date of discovery of facts which would reason-
ably lead to such discovery, whichever is earlier. In no
event may any action be commenced to recover damages
for an alleged breach of warranty on improvements to real
property or deficiency in the design, planning, supervi-
sion, or observation of construction, or construction of an
improvement to real property more than ten years beyond
the time of the act giving rise to the cause of action.
(Emphasis supplied.)
[21] Where the basis of the claim is improper workmanship
resulting in defective construction, under either negligence
or breach of the implied warranty to perform in a workman-
like manner, 22 the statute of limitations of § 25-223 runs from
the date of substantial completion of the project, not the date
of any specific act which resulted in the defect. 23 The parties
agree that the home was substantially completed by November
2012. The de Vrieses’ action was not brought until February
15, 2017.
[22,23] Aside from discovery periods set forth by statute,
we have recognized equitable estoppel may be successfully
asserted to avoid the statute of limitations defense when one
lulls his or her adversary into a false sense of security, thereby
causing that person to subject his or her claim to the bar of the
statute of limitations, and then pleads the very delay caused
by his or her conduct as a defense to the action when it is
filed. 24 Used in this way, estoppel does not extend the statute
of limitations but prevents a party from pleading and utilizing
22
See, McCaulley v. C L Enters., 309 Neb. 141, 959 N.W.2d 225 (2021);
Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 481 N.W.2d 422(1992); Williams v. Kingery Constr. Co., 225 Neb. 235, 404 N.W.2d 32(1987).
23
See, McCaulley v. C L Enters., supra note 22; Adams v. Manchester Park,
291 Neb. 978, 871 N.W.2d 215 (2015). See, also, Fuelberth v. Heartland
Heating & Air Conditioning, 307 Neb. 1002, 951 N.W.2d 758 (2020);
Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985).
24
See Rauscher v. City of Lincoln, 269 Neb. 267, 691 N.W.2d 844 (2005).
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Cite as 310 Neb. 543the statute as a bar—although a potential plaintiff must still act
diligently to file the action within a reasonable time. 25
(a) Statute of Limitations as Matter of Law
[24] With respect to its challenges to the jury’s verdict on the
statute of limitations as a matter of law, L&L raises the denial
of its motions for summary judgment, directed verdict, and
judgment notwithstanding the verdict. The denial of a motion
for summary judgment is neither appealable nor reviewable. 26
A directed verdict is proper at the close of all the evidence only
when reasonable minds cannot differ and can draw but one
conclusion from the evidence, that is, when an issue should be
decided as a matter of law. 27 A motion for judgment notwith-
standing the verdict may be granted when the movant’s previ-
ous motion for directed verdict, made at the conclusion of all
the evidence, should have been sustained. 28
In considering whether the court erred in denying judgment
as a matter of law based on the statute of limitations, either a
finding of protection under the discovery period of § 25-223
or that L&L was estopped from relying on § 25-223 would
be determinative of whether the de Vrieses’ action was time
barred. Stated another way, for L&L to be entitled to judgment
as a matter of law on the statute of limitations, it must have
been determinable as a matter of law both that (1) the action
was not brought within the discovery period of § 25-223 and
(2) L&L was not estopped from relying on the statute of limi-
tations; a factual dispute as to either question would prevent
25
See, Reifschneider v. Nebraska Methodist Hosp., 233 Neb. 695, 447
N.W.2d 622 (1989); 54 C.J.S., Limitations of Actions § 56 (2020).
26
See Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999). See, also, e.g.,
State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606, 924
N.W.2d 664 (2019).
27
AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212(2020).
28
Facilities Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 298 Neb. 777, 906
N.W.2d 1 (2018).
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Cite as 310 Neb. 543judgment as a matter of law that the de Vrieses’ action was
barred by the statute of limitations. And as we explain, the
district court did not err when it failed to determine as a matter
of law that the de Vrieses could not rely on estoppel to avoid
L&L’s statute of limitations defense.
L&L argues the district court should have determined the
de Vrieses could not rely on estoppel to avoid L&L’s statute of
limitations defense because estoppel was “a defense . . . that
had not been pled.” 29 As support for the contention that estop-
pel must be formally pled before a plaintiff can rely on the
doctrine to avoid a statute of limitations defense, L&L relies
on the Nebraska Court of Appeals opinion in Gard v. City of
Omaha. 30 As we explain, L&L reads Gard too broadly.
In Gard, the Court of Appeals recited the general principle
that estoppel is an affirmative defense which must be raised
in the pleadings, 31 and it then suggested the same rule should
apply when estoppel is asserted “in avoidance of the statute of
limitations rather than as an affirmative defense.” 32 But Gard
also cited to settled case law from this court holding that a
“party entitled to estoppel need not in all cases formally plead
estoppel [and] if facts constituting estoppel are in any way
sufficiently pleaded, party is entitled to benefit of law aris-
ing therefrom.” 33 After reciting these principles, the Court of
Appeals in Gard reasoned that even if the plaintiffs had suf-
ficiently pled facts constituting estoppel, the evidence did not
support the doctrine because there was no evidence that the
29
Brief of appellant at 28.
30
Gard v. City of Omaha, 18 Neb. App. 504, 786 N.W.2d 688 (2010).
31
See, generally, Neb. Ct. R. Pldg. § 6-1108(c) (including estoppel among
nonexclusive list of affirmative defenses which must be set forth affirm­
atively in responsive pleading).
32
Gard, supra note 30, 18 Neb. App. at 511, 786 N.W.2d at 695.
33
Id., citing Greer v. Chelewski, 162 Neb. 450, 76 N.W.2d 438 (1956).
Accord U. S. Tire Dealers Mutual Corporation v. Laune, 139 Neb. 26, 296
N.W. 333 (1941).
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Cite as 310 Neb. 543defendant lulled the plaintiffs into a false sense of security
that caused plaintiffs to delay in filing their claim. Contrary to
L&L’s assertion, Gard did not announce a new rule that plain-
tiffs must formally plead estoppel before they can raise the
doctrine in response to a defendant’s affirmative defense.
[25] Instead, it remains the rule in Nebraska that when estop-
pel is raised as an affirmative defense to a claim for relief, it
must be affirmatively set forth in the party’s responsive plead-
ing. 34 But when a plaintiff raises estoppel to avoid or rebut an
affirmative defense that has been alleged in a responsive plead-
ing, evidence of estoppel is generally admissible without being
formally pled. 35
These differing pleading requirements are consistent with
Nebraska’s pleading rules, which no longer require a reply to
an answer unless ordered by the court 36 and which provide
instead that “[a]verments in a pleading to which no responsive
pleading is required or permitted shall be taken as denied or
avoided.” 37 Nevertheless, we encourage courts to utilize the
pretrial conference to identify the issues to be tried and to set
out those issues in a pretrial order, which can cure any question
of whether a defense was raised. 38
On this record, there is no merit to L&L’s contention that the
de Vrieses were required to formally plead estoppel in avoid-
ance of the affirmative defense raised by L&L. The district
court did not err in failing to determine as a matter of law that
the de Vrieses could not rely on estoppel to avoid L&L’s statute
of limitations defense.
34
See Neb. Ct. R. Pldg. § 6-1108(c).
35
See Greer, supra note 33. Accord, Fluckey v. Anderson, 132 Neb. 664, 669,
273 N.W. 41, 43 (1937) (“‘[e]vidence of estoppel is admissible without
being pleaded in order to rebut evidence introduced by the opposite
party’”).
36
See Neb. Ct. R. Pldg. § 6-1107(a).
37
Neb. Ct. R. Pldg. § 6-1108(d).
38
See Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).
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Cite as 310 Neb. 543(b) Jury Instructions on Statute of Limitations
[26-29] We turn to L&L’s alternative argument that it was
prejudiced by the jury instruction on the statute of limitations
such that the district court should have granted its motion
for a new trial. In doing so, we apply the following general
principles. Directly quoting an applicable statute is a permis-
sible form of jury instruction. 39 And where a general charge
fairly presents the case to the jury, it is not error for the trial
court, in the absence of a request for a more specific instruc-
tion, to fail to give a more elaborate one. 40 To establish
reversible error from a court’s failure to give a requested jury
instruction, an appellant has the burden to show that (1) the
tendered instruction is a correct statement of the law, (2) the
tendered instruction was warranted by the evidence, and (3)
the appellant was prejudiced by the court’s failure to give the
requested instruction. 41 If the instructions given, which are
taken as a whole, correctly state the law, are not misleading,
and adequately cover the issues submissible to a jury, there
is no prejudicial error concerning the instructions and neces-
sitating a reversal. 42 Failure to object to jury instructions after
they have been submitted to counsel for review or to offer
more specific instructions if counsel feels the court-tendered
instructions are not sufficiently specific, precludes raising an
objection on appeal. 43
We find that the general verdict rule applies to L&L’s chal-
lenge to the jury instruction on the statute of limitations. Any
error in the jury instruction on the discovery period will be
disregarded if the instruction on estoppel was presented to the
jury free from error, and vice versa. When the jury returns
a general verdict for one party, we presume that the jury
39
See State v. Reichstein, 233 Neb. 715, 447 N.W.2d 635 (1989).
40
Smith v. Wrehe, 199 Neb. 753, 261 N.W.2d 620 (1978).
41
VKGS v. Planet Bingo, 309 Neb. 950, 962 N.W.2d 909 (2021).
42
Id.43
Wilkins v. Bergstrom, supra note 12. See Neb. Ct. R. § 6-802.
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Cite as 310 Neb. 543found for the successful party on all issues raised by that party
and presented to the jury. 44 Under the “general verdict” rule,
where a general verdict is returned for one of the parties, and
the mental processes of the jury are not tested by special inter-
rogatories to indicate which issue was determinative of the
verdict, it will be presumed that all issues were resolved in
favor of the prevailing party, and, where a single determinative
issue has been presented to the jury free from error, any error
in presenting another issue will be disregarded. 45 While the
jury was presented with a special verdict form on the statute
of limitations, that form did not separate the issue of the dis-
covery period from the issue of equitable estoppel. We must
therefore presume the jury found in favor of the de Vrieses on
both issues, either of which would independently support its
finding that the de Vrieses’ action was not barred by the statute
of limitations.
Nevertheless, we will briefly address both arguments chal-
lenging the instruction on the statute of limitations. We find
neither has merit.
L&L’s first argument is that it was prejudicial error for the
court to refuse to instruct the jury on the dates the discovery
period began to run and on the relevant dates defining the
period of discovery. L&L’s only objection to the district court’s
refusal, pertaining to the current argument based on the failure
to specify dates, was as follows: “The defendant objects and
believes a date should be utilized.” The record fails to reflect
that L&L elaborated at the jury instruction conference upon
what that date should be. There is no evidence in the record
that L&L tendered any alternative jury instruction. L&L’s
vague objection that the instruction should include “a date”
failed to preserve the alleged error that the instruction was
44
Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018).
45
Lahm v. Burlington Northern RR. Co., supra note 4. See, also, First Nat.
Bank North Platte v. Cardenas, 299 Neb. 497, 909 N.W.2d 79 (2018);
Lewison v. Renner, 298 Neb. 654, 905 N.W.2d 540 (2018); Golnick v.
Callender, supra note 3.
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Cite as 310 Neb. 543insufficiently specific. And the general charge on the discov-
ery period correctly stated the law, was not misleading, and
adequately covered the issues submissible to a jury.
[30,31] L&L’s second assertion is that it was prejudicial error
to instruct the jury on estoppel because it was not pleaded. We
have already determined this argument lacks merit. We also
observe that L&L did not object below to the instruction on
estoppel. Instead, L&L stated, “We also believe that the dis-
covery period was not alleged in the amended complaint.”
Discovery periods and equitable estoppel involve two differ-
ent doctrines. 46 Equitable estoppel is not based upon the con-
struction of a statute of limitations, but on the common law. 47
Further, when a reasonable person should have discovered with
due diligence a cause of action for purposes of a statutory dis-
covery period requires no fault on the part of the defendant. 48
Equitable estoppel, in contrast, requires fault on the part of the
defendant. 49 Stated another way, discovery periods focus on the
plaintiff’s knowledge, whereas equitable estoppel focuses on
the defendant’s conduct.
We make no comment on the adequacy of the wording of
the estoppel instruction used here, as that has not been raised
on appeal. We disagree with L&L’s contention that the district
court erred in its instruction on the statute of limitations such
that L&L is entitled to a new trial.
2. No Settlement Setoff
The remaining issues raised by L&L on appeal concern
damages. L&L’s first argument in this regard is that the dis-
trict court erred when it failed to set off from the jury verdict
46
See, e.g., Reifschneider v. Nebraska Methodist Hosp., supra note 25;
Muller v. Thaut, 230 Neb. 244, 430 N.W.2d 884 (1988).
47
See, Muller v. Thaut, supra note 46. See, also, In re Estate of Fuchs, 297
Neb. 667, 900 N.W.2d 896 (2017).
48
See In re Estate of Fuchs, supra note 47.
49
See id.- 580 -
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Cite as 310 Neb. 543the amount of the de Vrieses’ settlement with TD2 and that it
erred in denying L&L’s motions, after the court’s ruling deny-
ing setoff, to compel and reconsider.
L&L sought a pro tanto setoff relying on the general propo-
sition that where several claims are asserted against several
parties for redress of the same injury, only one satisfaction can
be had. 50 Under this principle, the defendant is not entitled to a
setoff to the extent settlement is reached for an injury or dam-
ages the remaining defendant or defendants in the action are
not found liable. 51 We do not understand L&L to have asserted
a right to a setoff under any other legal theory, and we limit our
analysis accordingly.
[32] The party who pleads a setoff bears the burden of prov-
ing it. 52 Typically, at the hearing on the motion, the movant
for a setoff introduces into evidence the settlement at issue. 53
While the settlement with the dismissed party may be in the
hands of the plaintiff, the plaintiff is not required to volunteer
it at the hearing on the defendant’s motion; instead, the defend­
ant has the burden to request its production.
L&L did not present the court with evidence of the settle-
ment between TD2 and did not request its production at the
hearing on the motion for setoff. While L&L argues its hands
were tied because of the court’s pretrial order prohibiting L&L
from presenting to the jury the fact that TD2 was initially a
defendant to the action, L&L does not specifically assign that
order as error. Moreover, that order restricted presentation
of evidence to the jury. It did not prevent L&L from seeking
production of the settlement agreement and introducing it for
the court’s consideration at the bench hearing on its motion
for setoff.
50
See, Jameson v. Liquid Controls Corp., 260 Neb. 489, 618 N.W.2d 637(2000); Vowers & Sons, Inc. v. Strasheim, 254 Neb. 506, 576 N.W.2d 817(1998).
51
See id. See, also, Strasburg v. Union Pacific RR. Co., supra note 21.
52
Davis Erection Co. v. Jorgensen, 248 Neb. 297, 534 N.W.2d 746 (1995).
53
See, e.g., Strasburg v. Union Pacific RR. Co., supra note 21.
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Cite as 310 Neb. 543In denying the motion for setoff, the court reasoned that, as
a result of the settlement agreement not being produced, it did
not know the amount of the settlement or what claims or dam-
ages the settlement encompassed. The court explained that the
de Vrieses had sought to recover against TD2 not only dam-
ages as to the residence, but also for the bluff, and further, that
the de Vrieses had sought to recover stigma damages related
to the house, which they were not allowed to recover from
L&L. Thus, concluded the court, “it would not be possible to
determine what amount of the settlement proceeds from TD2
related to what alleged damage.” We agree that the court could
not determine the extent to which the settlement compensated
the de Vrieses for the same injury and damage, if at all. The
district court did not abuse its discretion in denying the motion
for setoff.
We review the denial of a motion to reconsider for an abuse
of discretion. A court’s order on a motion to compel is likewise
reviewed for an abuse of discretion. 54 As the district court
pointed out, L&L’s motion to compel, following the court’s rul-
ing on the motion for setoff, was untimely. A motion for recon-
sideration, which is considered nothing more than an invitation
to the court to consider exercising its inherent power to vacate
or modify its own judgment, is insufficient for purposes of
asking a trial court to pass upon an issue in order to properly
preserve it for appeal. 55 We find no abuse of discretion in the
court’s decision to overrule the motion to compel as untimely
and in denying L&L’s motion to reconsider the court’s ruling
on the motion for setoff.
3. Excessive Damages Beyond Costs to Repair
L&L’s remaining challenge to the amount of the damages
concerns the court’s denial of what was, in essence, a motion
for remittitur, made as part of L&L’s motion to alter or amend.
54
See Thynne v. City of Omaha, 217 Neb. 654, 351 N.W.2d 54 (1984).
55
See Maxwell v. Montey, supra note 5.
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Cite as 310 Neb. 543L&L asserts that the jury awarded a sum that exceeded the
amount proved by competent evidence. An appellate court
reviews a denial of a motion to alter or amend the judgment for
an abuse of discretion. 56
[33-35] The amount of damages to be awarded is a deter-
mination solely for the fact finder, and the fact finder’s deci-
sion will not be disturbed on appeal if it is supported by the
evidence and bears a reasonable relationship to the elements
of the damages proved as opposed to uncertain, speculative
recovery. 57 Where a verdict is excessive, but not so much as to
indicate passion or prejudice on the part of the jury, the error
may be corrected by remittitur, if the excess can be estimated
with reasonable certainty. 58 An appellate court should order
remittitur only when the award is contrary to all reason. 59 And
if there is no method by which a court can rationally ascertain
the extent of the excess of a verdict, a remittitur cannot be
required, for the reason that under such circumstances, a remit-
titur is nothing more than a substitution of the judgment of the
court for that of the fact finder. 60
L&L calculates that the damages award should have been
reduced to $289,845, a sum derived from a contractor’s esti-
mate to make the repairs to the house that were recommended
by the geotechnical engineers hired by the de Vrieses to deter-
mine the necessary course of action to remedy the defects.
L&L asserts the jury, in awarding $418,175, must have relied
on amounts attributable to the work of geotechnical engineers
who were later secured by the de Vrieses as expert witnesses.
And L&L asserts that all of the work of the geotechnical
engineers, who later testified at trial on the de Vrieses’ behalf,
constituted nonrecoverable litigation costs. While indisputably
56
Jacobs Engr. Group v. ConAgra Foods, supra note 1.
57
See, id.; Roth v. Wiese, supra note 20.
58
Jacobs Engr. Group v. ConAgra Foods, supra note 1.
59
Id.60
Nelson-Holst v. Iverson, 239 Neb. 911, 479 N.W.2d 759 (1992).
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Cite as 310 Neb. 543there was ample other evidence concerning the costs to cure
the failing bluff and to provide proper drainage of the lot,
supporting the amount of the damages awarded, L&L urges
our court to discount this evidence based on L&L’s conjecture
that the jury found it was not liable for the bluff or the lot.
L&L surmises the jury found it liable only for damages to the
house itself.
[36] We find no error in the court’s denial of L&L’s motion
for remittitur. Much of the testimony and exhibits supporting
the amount of the jury’s award was not objected to, and the
court did not err in overruling L&L’s objections to investiga-
tion costs associated with identifying the sources of the prob-
lems with the house and how to fix them. Amounts expended
to investigate the extent of a defect and determine the proper
course of remediation are recoverable damages, not litigation
costs. 61 We decline L&L’s invitation to speculate, based on the
amount of the award, that the jury reasoned L&L was not liable
for any remedial measures or repair costs concerning the bluff
or lot drainage. Our mandate in light of the general liability
verdict form presented to the jury is to presume the jury found
for the de Vrieses on all issues raised and presented to the
jury. 62 To do otherwise would be to improperly speculate as to
the jury’s deliberation. 63 There are no grounds presented in this
appeal justifying reversal of the jury’s award of damages.
4. Cross-Appeal
Having found no merit to L&L’s appeal, we turn to the
de Vrieses’ cross-appeal. The de Vrieses assert that the district
court erred in excluding expert testimony on stigma damages
and preventing them from submitting the issue of stigma dam-
ages to the jury with respect to damages for the defective con-
struction of the house.
61
See Stearman v. Centex Homes, 78 Cal. App. 4th 611, 92 Cal. Rptr. 2d 761(2000).
62
See Golnick v. Callender, supra note 3.
63
See VKGS v. Planet Bingo, supra note 41.
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Cite as 310 Neb. 543[37,38] Under Neb. Rev. Stat. § 25-1146 (Reissue 2016),
“[w]henever damages are recoverable, the plaintiff may claim
and recover any rate of damages to which he may be entitled
for the cause of action established.” In connection with dam-
ages for a breach of warranty concerning building construc-
tion or injury to a building or other structure, we have noted
with approval the general principle that the “‘basic goal of the
court is compensation—that is, to award such an amount of
money as will restore the injured party to the same property
status which he occupied immediately prior to the injury.’” 64
Further, because “‘[t]he facts vary from case to case,’” 65
“‘[a] rule of damages which produces compensation in one
case may be overcompensation (or undercompensation) in
another case.’” 66
[39] In “L” Investments, Ltd. v. Lynch, 67 we said that the
proper measure of damages for injury to an improvement
upon real estate that can be repaired is, in addition to any
other consequential damages the injured party may establish
by proper proof, the reasonable cost of repairing the property
in like kind and quality if: (1) the improvement upon realty is
damaged without damage to the realty itself, (2) the nature of
the thing damaged is such that it is capable of being repaired
or restored, (3) the cost of doing so is capable of reasonable
ascertainment, and (4) the cost of repair or restoration does
not exceed the market value of the property just before the
injury. On this last factor, we elaborated that “one ought not
to be able to recover a greater amount for partial destruction
than one could recover for total destruction”; thus, “[i]f, in
fact, the cost of repair or restoration exceeds the market value
of the property just before the injury, then the proper measure
64
“L” Investments, Ltd. v. Lynch, 212 Neb. 319, 323-24, 322 N.W.2d 651,
654 (1982), quoting 22 Am. Jur. 2d Damages § 138 (1965).
65
Id. at 324, 322 N.W.2d at 654.
66
Id. at 324, 322 N.W.2d at 654-55.
67
“L” Investments, Ltd. v. Lynch, supra note 64.
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DE VRIES v. L & L CUSTOM BUILDERS
Cite as 310 Neb. 543of damages is the market value of the property just before the
damages were incurred, less any salvage.” 68
But we specifically rejected in “L” Investments, Ltd., any
rule that would limit damages for the costs of repairs to those
that do not exceed the diminution of value of property, disap-
proving of prior law stating otherwise. We explained that, for
example, when someone damages some windows of an old
warehouse, it may suffer no diminished value in relation to its
total value and it may still be capable of fulfilling its intended
function; nevertheless, the owner is entitled to demand that the
wrongdoer repair the broken windows. 69 The owner is entitled
to have the building without broken windows even though the
total value of the property remains unchanged. 70
In Jones v. Elliott, 71 another case involving real property,
we explained that there is no conflict between the rule that the
damage to which the owner is entitled to recover is the expense
of making the work conform to contractual requirements and
the rule that if the defects cannot be remedied without recon-
struction of or material injury to a substantial portion of the
building, the measure of damages is the difference between its
value when constructed and what its value would have been if
built according to contract. “‘Each rule is enforceable under
any state of facts to which it applies.’” 72 The damages affirmed
in Jones consisted of certain aspects of the structure and equip-
ment; lost profits; and, since attempting to repair footings and
foundations could have “disasterous results,” 73 any diminished
market value as a result of faulty construction of the footings
and foundations.
68
Id. at 328, 322 N.W.2d at 656.
69
See “L” Investments, Ltd. v. Lynch, supra note 64.
70
See id.71
Jones v. Elliott, 172 Neb. 96, 108 N.W.2d 742 (1961).
72
Id. at 107, 108 N.W.2d at 748.
73
Id. at 108, 108 N.W.2d at 749.
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Cite as 310 Neb. 543We agree with the de Vrieses that in the context of real
property there may be circumstances where, because all physi-
cal defects cannot be fully repaired or replaced, the total award
of damages will consist of both repair costs and diminution in
value—as long as the total sum does not exceed the value of
the real estate before the injury. But at issue here is the exclu-
sion of expert testimony of diminished market value under the
hypothetical that the repairs for which the de Vrieses sought
compensation would fully repair all physical defects to the
house. The offer of proof as to the expert witness’ testimony
did not specify that there was any remaining physical defect
upon which the diminishment of value was based, and the
court, in making its ruling, understood the question of stigma
damages to be premised on reputation despite the absence of
any lingering physical defect. The de Vrieses did not con-
test that was the issue presented and decided in the motion
in limine.
The idea of stigma damages refers to a reduction in market
value caused by a public’s fear and is traditionally described as
the diminishment in market value based on public perception
or reputation in the absence of any permanent physical harm. 74
Stigma damages have been criticized for their dependence
upon inaccurate or unreasonable perceptions that can change
at any time. 75 Many courts have thus adopted a rule that only
allows recovery for the public’s perception of the risk associ-
ated with the real property when the repairs or remediation
fail to fully eliminate the physical defects and some ongoing
74
See, Muncie v. Wiesemann, 548 S.W.3d 877 (Ky. 2018); Houston Unlimited
v. Mel Acres Ranch, 443 S.W.3d 820 (Tex. 2014); Pflanz v. Foster, 888
N.E.2d 756 (Ind. 2008); Walker Drug Co., Inc. v. La Sal Oil Co., 972 P.2d
1238 (Utah 1998).
75
See Jennifer L. Young, Stigma Damages: Defining the Appropriate
Balance Between Full Compensation and Reasonable Certainty, 52 S.C.
L. Rev. 409 (2001).
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Cite as 310 Neb. 543risk actually continues to exist. 76 They do not allow damages
based on “pure . . . stigma.” 77 Indeed, in circumstances where
there is a residual physical defect, the resultant diminishment
in market value arguably would not be accurately described as
due to stigma at all.
[40] We agree that public perceptions of a defect when the
evidence demonstrates there is none is an improper basis for
recovery. In such scenarios, the longer the property demon-
strates no lingering effects from the defects remedied, the more
public perception will improve. The diminishment in value due
to the stigma is thus ever changing. Damages related to such
changing perceptions is inherently speculative and without rea-
sonable certainty.
Based on the proffered expert testimony, the district court
did not err in granting L&L’s motion in limine excluding the
presentation of evidence of stigma damages to the jury.
VI. CONCLUSION
The district court did not err in refusing to determine the
statute of limitations as a matter of law, in giving its instruc-
tions on the statute of limitations, or in failing to order remit-
titur or setoff of the damages award. The district court also did
not err in excluding evidence of stigma damages. We affirm
the judgment.
Affirmed.
Miller-Lerman, J., not participating.
76
See, e.g., In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir.
1994); Berry v. Armstrong Rubber Co., 989 F.2d 822 (5th Cir. 1993); Rudd
v. Electrolux Corp., 982 F. Supp. 355 (M.D.N.C. 1997); Ramirez v. Akzo
Nobel Coatings, Inc., 153 Ohio App. 3d 115, 791 N.E.2d 1031 (2003);
Santa Fe Partnership v. ARCO Products Co., 46 Cal. App. 4th 967, 54
Cal. Rptr. 2d 214 (1996); Adkins v. Thomas Solvent Co., 440 Mich. 293,
487 N.W.2d 715 (1992).
77
See Ramirez v. Akzo Nobel Coatings, Inc., supra note 76, 153 Ohio App.
3d at 119, 791 N.E.2d at 1034.